Judgment :- Petitioners are Excise Guards working in the Excise and Prohibition Department. They have approached this court complaining the violation of the special rules governing the field by which a ratio was prescribed between SSLC and non-SSLC hands for promotion to the post of Excise Preventive Officers. The rule in question is extracted as follows: “2. Excise Preventive Officers: 1. Direct Recruitment or 2. Promotion from Category 3. Provided that every fourth substantive vacancy shall be filled or reserved to be filled by direct recruitment: Provided further that the remaining vacancies shall be filled by promotion from among Excise Guards possessing the minimum qualification of the S.S.L.C. standard and those do not possess this qualification in the ratio 1:1.” Promotion to the post of Preventive Officers has to be made in the ratio 1:1 among the candidates who possession S.S.L.C.. According to the petitioners they belong to the category of non-SSLC Excise Guards. The minimum service required is seven years for promotion as Preventive officers. In the case of SSLC hands it is only three years. The petitioners have seven years service as Excise Guards. They have also passed a test conducted by the Public Service Commission, it is stated. They are aggrieved by Exts.P3 and P4. The complaint made is that by Ext.P3 order promotion was made in violation of the statutory special rules referred to herein before. It is stated in Ext.P3 that while applying 1:1 ratio now existing in the special rule a senior most Excise Guard who possesses the minimum educational qualification of pass in same or its educational qualification of pass in same or its equivalent shall not be superseded by a junior Excise Guard. Ext.P4 is the order dated 30.3.2001 referred to in Ext.P3. In Ext.P4 it is stated that the application of the ratio 1:1 in promotion of Excise Guards who have passed SSLC or its equivalent and who have not passed SSLC seemed to be not in conformity in respect of qualifications. This ratio worked when there were more non-SSLC Excise Guards. Now the Excise Department has more SSLC Excise Guards. The number of Excise Guards who have passed SSLC or its equivalent out number the non-SSLC Excise Guards and when the ratio 1:1 is applied the non-SSLC Excise Guards supersede the SSLC passed Excise Guards. This ratio worked when there were more non-SSLC Excise Guards. Now the Excise Department has more SSLC Excise Guards. The number of Excise Guards who have passed SSLC or its equivalent out number the non-SSLC Excise Guards and when the ratio 1:1 is applied the non-SSLC Excise Guards supersede the SSLC passed Excise Guards. This is an anomaly in service which resulted in dissatisfaction and unrest among qualified Excise Guards who possess a pass in SSLC, it is stated. It is thereafter stated that the Government have examined the matter and are pleased to order that while applying the 1:1 ratio now existing in the above Special Rules a senior Excise Guard who possesses the minimum educational qualification of pass in SSLC or its equivalent shall not be superseded by a junior Excise Guard who does not possess the qualification of pass in SSLC or it s equivalent. Suitable amendments to the Special Rules will be made subsequently is what is stated further in Ext.P4. The petitioner relied on Ext.P5 order dated 10.1.2003 for the contention that even if Exts.P3 and P4 are countenanced in view of the fact that the Government refused to give retrospective effect to the order, having regard to the fact that their claim arose prior to the issuance of Ext.P4 order, they cannot at any rate be affected by Ext.P4. Learned counsel for the petitioner relied on the decisions reported in Jesilet v. State of kerala (1987 (2) K.L.T. 984), in Chandran v. Board of Revenue (1995(1) K.L.T. 12) and in Sonal V. State of Karnataka (AIR 1987 SC 2359). He would contend that it is trite that when Special rules occupy the filed, it is not open to the Government to supplant it even though it is not open to the Government to supplement it. He would say that the effect of Ext.P4 as given effect to in Ext.P3 is that the statutory right under the Special Rules available to the petitioners to be considered for appointment to the vacancies as and when they arose and when they were fully qualified to be appointed in terms of the ratio is violated. Learned Government Pleader read out the counter affidavit filed in this case and contended for the position that the case of the petitioners cannot be accepted in the teeth of the Government Order. Learned Government Pleader read out the counter affidavit filed in this case and contended for the position that the case of the petitioners cannot be accepted in the teeth of the Government Order. There is no case that the rules have been amended pursuant to Ext.P4. The wording of the executive order will have the effect of depriving the non-SSLC Excise Guard of his rightful promotion in terms of the ratio. This can be done only by amending the rules, if so advised. Admittedly such an amendment has not been effected. Without effecting amendment to the rules, it will be opposed to the elementary principle of law that an executive order if placed side by side with the statutory instrument cannot but perish if it is not in conformity with the later. In such circumstances I am constrained to quash Exts.P3 and P4. Ext.P3 is quashed for the reason that it is premised upon Ext.P4 and has otherwise no legs to stand on. In view of the fact that I have quashed Exts.P3 and P4, the case of the petitioners are liable to be considered in accordance with law against the vacancies seen filled up by promotion of the persons mentioned in Ext.P3. I make it clear that it may be open to the respondents to deny promotion to the petitioner, if there is any other legal impediment. 2. Accordingly, there will be a direction to the respondents to consider the case of the petitioners in accordance with the statutory rules against the vacancies seen filled up by promoting the persons mentioned in Ext.P3 and after ignoring Ext.P4. Naturally the petitioners will be entitled to all benefits to which they are entitled to. This shall be done within a period of three weeks from the date of receipt of a copy of this judgment. The Original Petition is allowed as above.